Wednesday, June 17, 2020

Law clerks unite

This is a great story about a law clerk rightfully taking on a very powerful federal appellate judge in a group email and winning.  So great.  The whole article is worth a read, but here’s the intro with the law clerk’s responsive email:
The battle over renaming U.S. bases that currently honor Confederate officers broke out in the U.S. Court of Appeals in Washington, D.C., on Monday. But the argument was not in the courtroom; rather, it was launched, and settled, over email. In an email sent Circuit-wide on Sunday, Judge Laurence Silberman, a Reagan appointee, lambasted Sen. Elizabeth Warren, D-Mass., for her amendment to the National Defense Authorization Act requiring the military to strip the names of rebel officers from any military assets. “Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves,” Silberman wrote.The interview Silberman referenced was part of a series of chats judges do, open only to court staff. Silberman went on to explain that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania. “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned,” he wrote (lack of punctuation and errant capitalization in the original, and throughout). “My great great grandfather Never owned slaves as best I can tell.”Silberman’s post, which went out widely to scores of Court staff and judges, sat unanswered over the next day, until the first volley was sent back not by a fellow judge but by a clerk: courtroom employees who work directly with judges to research and write their opinions. “Hi Judge Silberman,” began the career-risking reply-all email, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own,” they went on. “Since no one in the court’s leadership has responded to your message, I thought I would give it a try.”
[M]y maternal ancestors were enslaved in Mississippi. While the laws of this nation viewed my ancestors as property, I view them as hostages. In a hostage situation, when someone does something that leads to the freeing of the hostages, I am not sure if the hostages would be concerned as to whether the person that saved them, actually intended to save them. In this instance, as people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality. For them, and myself, race is not an abstract topic to be debated, so in my view anything that was built to represent white racial superiority, or named after someone who fought to maintain white supremacy (or the Southern economy of slavery), see Photo of Liberty Monument attached, should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.In your message, you talked about your ancestors, one that fought for the confederacy and one that fought for the Union. This seems to be a true example of a house divided. However, it is very clear what the Confederacy stood for. In 1861, at the Virginia secession convention, Henry L. Benning (for whom Fort Benning is named) in explaining the reasoning for Georgia’s decision to secede from the United States stated, “[it] was a conviction … that a separation from the North was the only thing that could prevent the abolition of her slavery…[I]t is probable that the white race, being superior in every respect, may push the other back.” Unfortunately, in this scenario, no matter how bravely your uncle fought for the Confederacy, the foundation of his fight was a decision that he agreed more with the ideals of the Confederacy, than he did with those of the Union. And in the end, he chose the losing side of history.Finally, I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.
The correspondence was provided to The Intercept by a member of the Court staff on the condition the identity of the clerk (who was not the source) and judges who replied be kept confidential. 
 

12 comments:

  1. Anonymous9:27 AM

    awesome

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  2. Anonymous11:57 AM

    Could anyone who understands Judge Silberman's position explain it to the rest of us?
    How is renaming military bases or removing statues of confederate monuments from such bases equivalent to desecrating graves?
    And how is Warren's request "madness." Even if you disagree with it (I obviously do not) I cannot understand how a proponent of maintaining monuments to enemy troops cannot see both sides of this debate.
    Please enlighten me.

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  3. Bravery from this clerk. Good for him/her.

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  4. Anonymous9:38 AM

    Tens, tens, tens across the board!!!

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  5. Anonymous10:19 AM

    11:57AM, without writing a 50 page essay on the Civil War, please note the following that may "enlighten you." When General Lee surrendered to General Grant at Appomattox Courthouse, the terms of surrender (dictated by General Grant) included allowing the Confederate soldiers to keep their horses and mules and the officers were allowed to keep their swords. All Confederate soldiers were to be "paroled" and were to promise not to take up arms against the United States. General Grant also provided the Confederate Army with 25,000 food rations, as General Lee had informed Grant that his army had not eaten for several days. Thus began the reconciliation, later known as the "Reconstruction." General Grant never sought to extract revenge, thinking it better to reconcile for the country's sake. Although some Confederate soldiers and officers were charged with "war crimes" only one individual was tried and hanged. President Andrew Jonson issued a general amnesty for all Confederate soldiers in 1866 and there were no subsequent war crime trials. Those are the facts.
    In my opinion, since the North did not conduct wholesale executions and mass imprisonment of the Confederates or treat them as enemies, the Southern States then glorified their "heroes" by way of statues, etc. The United States was complicit in that the naming of these bases were done by the federal government. Right or wrong, these bases were named after Confederate officers that distinguished themselves in the line of duty, as soldiers on the battlefield - not as slave owners.
    The Supreme Allied Commander of Europe during WWII and later President of the United States, Gen. Dwight D. Eisenhower had 4 photographs in the Oval Office of the people he considered to be the "top 4 Americans of the past." They were, Benjamin Franklin, George Washington, Abraham Lincoln and Gen. Robert E. Lee. Are we now going to destroy President Eisenhower's legacy for this photograph in the White House? What about former President Jimmy Carter reinstating Confederate President Jefferson Davis' United States Citizenship in 1976? Why aren't there massive protests outside of President Carter's home for this heinous crime? I could go on and on. But the point is that the past is the past, you can't judge the past by today's standards. People and governments did what they thought correct at the time. I fear we are now living in George Orwell's novel "1984" - making Confederate soldiers "unpersons" - trying to erase "oldthink" and replace it with "goodthink" in order to "rectify" the historical record.

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  6. Anonymous1:32 PM

    What is next? Get rid of Dixie cups, South Dixie Highway,the mason-Dixon line, forbid the playing of the song Dixie? Rename Winn- Dixie to just Winn? Much too much political correctness and too sensitive for me.

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  7. Anonymous3:00 PM

    I love that the DACA decision basically comes down to bad lawyering by the agency and DOJ attorneys trying to end the program.

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  8. Anonymous4:19 PM

    Deliberately sloppy?

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  9. Anonymous4:28 PM

    Ah! Deep State!

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  10. Anonymous8:24 PM

    11:57 AM

    These statues were put up in protest against equal rights for African Americans and support of a war to continue slavery. There is no good reason for keeping them — they are not honoring Lee.

    Confederate heritage enthusiasts like you should know you are doing the exact opposite of honoring Lee and his wishes. After the Civil War, he swore allegiance to the Union and decried separatism. In his own words: “As regards the erection of such a monument as is contemplated,” Lee wrote in 1866, “my conviction is, that however grateful it would be to the feelings of the South, the attempt in the present condition of the Country, would have the effect of retarding, instead of accelerating its accomplishment; & of continuing, if not adding to, the difficulties under which the Southern people labour.”



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  11. Anonymous9:29 AM

    1:32: yes, we are going to do away with South Dixie Highway

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  12. Anonymous8:02 AM

    Never understood why we named bases after people that were traitors to the USA. maybe we ought to name a base after Robert Hansen the FBI agent who sold out to the Russians?

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